The Dastardly Supreme Court
Liberals are overreacting to the justices’ aggressive oral arguments.

Jonathan Chait, E. J. Dionne, and Jeffrey Toobin


After telling themselves that Obamacare’s individual mandate was patently constitutional, liberals are now aghast at the possibility — seemingly more likely after this week’s oral arguments — that it will be overturned. In a panic, the Left has leveled all sorts of ridiculous charges against the Supreme Court. Here are the three worst offenses.

1. The justices are hypocrites.

New York magazine’s Jonathan Chait growls that Justice Antonin Scalia — before he has even cast a vote, mind you — “is gleefully reversing his previous interpretation of the Commerce Clause.” For evidence, Chait links to a post by blogger NYCSouthPaw, who contends that one of Scalia’s comments during oral arguments “completely contradicts something [he] wrote in one of his most famous opinions.”

But it doesn’t. When Solicitor General Donald Verrilli argued that the mandate was no more novel than a host of other legislation the Court had upheld, Scalia replied, “Oh, no, it’s not. [The previous cases] all involved commerce.”

NYCSouthPaw quotes Scalia’s concurrence from Gonzales v. Raich, in which the Court held that Congress could prohibit private cultivation of marijuana — an intrastate, noncommercial activity. He brandishes what he thinks is the smoking gun: Scalia’s declaration that Congress could regulate “activities that substantially affect interstate commerce [that] are not themselves part of interstate commerce.”

But during oral arguments, Scalia distinguished this case from those precedents, explaining, “You’re saying that some people who are not in [the insurance market] must be in it, and that’s — that’s different from regulating in any manner commerce that already exists out there.” Indeed, Scalia can believe both that Congress can regulate intrastate, noncommercial activities “that substantially affect interstate commerce” and that non-ownership of insurance is a condition, not an activity.

Similarly dubious is the assertion that Chief Justice John Roberts, by joining the majority opinion in United States v. Comstock, pinky-swore to uphold the mandate. In that case, the Court held that Congress could authorize indefinite civil commitment of sexual predators. Elizabeth Wydra, chief counsel for the Constitutional Accountability Center, told ABC News that “Comstock required only a rational relationship between the law and the enumerated power.”

Right, and the question is whether the mandate is a legitimate exercise of an enumerated power. Roberts or Scalia could decide it is, but they’re under no cast-iron obligation to do so.

2. The justices are legislating from the bench.

The Washington Post’s E. J. Dionne alleges that the conservative justices’ comments during oral arguments reveal that they “are prepared to act as an alternative legislature, diving deeply into policy details as if they were members of the Senate Health, Education, Labor and Pensions Committee.” And the chief justice is Public Enemy No. 1:

One of the most astonishing arguments came from Roberts, who spoke with alarm that people would be required to purchase coverage for issues they might never confront. He specifically cited “pediatric services” and “maternity services.”

Well, yes, men pay to cover maternity services while women pay for treating prostate problems. It’s called health insurance. Would it be better to segregate the insurance market along gender lines?